Articles Posted inIgnition Interlock Device

State Senator Robert Hedlund, a Weymouth Republican, has filed a bill designed to strengthen Melanie’s Law by requiring ignition interlock devices for six months after a first drunk driving offense. In an effort to close “loopholes,” his bill would also prohibit bundling (punishing two or more concurrent drunk driving offenses as one).

The National Transportation Safety Board (NTSB) has rated Massachusetts, which has adopted 4 of its 11 federal drunk driving recommendations, as being among the worst in the country when it comes to tough drunk driving policy. Some of the NTSB’s recommendations include a zero BAC limit for repeat offenders, impromptu alcohol screening for offenders, and a prohibition on plea bargaining. Even Senator Hedlund admitted to the Boston Herald that “some of the criteria that the NTSB looked at, might venture into areas related to civil liberties.”

It is well known that, time and again, lawmakers are influenced by the emotional pull surrounding strict OUI/DUI/drunk driving laws, and as a result, our constitutional protections are watered down. As Representative Eugene O’Flaherty, a Chelsea Democrat and House chairman on the judiciary committee, said to the Boston Globe, “The challenge is always how do you make sure that public safety is being enhanced while at the same time making sure that case law and constitutional safeguards are also protected.”
Of course, experienced Massachusetts OUI/DUI/drunk driving attorneys are always quickly alerted to any possible intrusions into these constitutional safeguards. Perhaps that is why Senator Hedlund blames the group of legislators who also work as criminal defense lawyers for rejecting measures to expand Melanie’s Law, which is already one of the most restrictive drunk driving laws in the country, in previous sessions.

A recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie’s Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle’s ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie’s Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and “bundling” of charges for repeat offenders.

It’s not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won’t pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it’s a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that’s not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don’t take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they’re intended to do: keep drunk drivers off the road. It’s illegal to take the breath test in someone else’s vehicle, but the technology can’t actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

The device would replace existing ignition interlock devices that are installed in the vehicles of people convicted of certain drunk driving charges. The existing devices require drivers to blow into a tube to have their blood-alcohol content (BAC) analyzed. If their BAC is too high, the car won’t start. The new device wouldn’t require the driver to do anything — it would automatically analyze ethanol in the moisture of the driver’s breath. Like the existing devices, the new one would prevent the car from starting if it detected a BAC above the legal limit.

QinetiQ North America, a Waltham defense contractor, is developing the device with $10 million in funding from the National Highway Traffic Safety Administration, the Automotive Coalition for Traffic Safety (an auto manufacturers group), and the Alliance of Automobile Manufacturers. Congress is considering kicking in another $10 million to help defray the cost of installing the device in new cars.

Obviously, drunk driving is dangerous, and encouraging drivers to take responsibility for their actions and avoid driving when they’re impaired is entirely desirable. But while it may be well-intentioned, this project raises several different kinds of red flags for me as a Massachusetts OUI defense attorney. First, as I wrote last month, breathalyzers can register false positives because they detect ethanol that comes from sources other than alcohol. Is it fair to have a device like this prevent a driver with a completely clean driving record from starting his or her car after painting the house or eating bread — both of which can set off false positives on a breathalyzer? How would the device know whether ethanol came from the breath of a sober driver or a drunk passenger — would this device have the unintended consequence of discouraging designated drivers? How would drivers of disabled cars get home from wherever the car stranded them, especially in the many areas of Massachusetts and the country where public transportation is not widely available?

In addition, it often takes a while for new technologies to be completely vetted so that they work properly. Innocent drivers affected by a malfunctioning or oversensitive automatic breathalyzer could actually be harmed if, for example, the car is prevented from starting when they have an emergency and need to get to a hospital, or if they need to get to work. Would people avoid buying new cars once these devices became standard equipment, so that they could avoid these devices?

Perhaps fewer OUI charges would be made once these devices were in circulation. But no matter the circumstances, anyone charged with drunk driving should retain a Massachusetts drunk driving criminal defense lawyer to help ensure the best possible outcome for their case. Fines costing thousands of dollars, jail time, loss of license, skyrocketing insurance costs and possible loss of a job could all be consequences of a drunk driving conviction in Massachusetts.

Last month, I wrote about the use of ignition interlock devices in Massachusetts drunk driving cases. Under Melanie’s Law, courts may order repeat OUI offenders to install these mobile breathalyzers in their vehicles, at their own expense. The devices were originally hailed as an effective way to stop drunk driving, but as I wrote in January, citizens and Massachusetts OUI defense attorneys have raised significant questions about their effectiveness, reliability and safety.

Now, a report from the Record of Waterloo, Ontario, Canada suggests that ignition interlock devices may someday be outmoded by a new technology. The Feb. 12 article says Sober Steering Sensors Canada Inc. is developing a type of chemical sensor that can detect what it calls the gas byproducts of alcohol though a person’s skin. The company is developing a steering wheel that incorporates the sensors. As with IIDs, the system would not allow the vehicle to start if it detects a high BAC. The Record said the company is already testing the technology in “fleet” vehicles, including buses and large trucks. Both MADD and the auto insurance industry have expressed interest, and the company’s founder was slated to talk to Florida’s state legislature about the technology Feb. 15.

The article said Sober Steering’s product may improve on IIDs for several reasons. IIDs require a “clean” breath test before they allow the vehicle to start. Drivers can get around this by having another person take the test. For this reason, IIDs also require a “rolling retest,” which means retaking the breath test while the vehicle is in motion. Critics believe this is not safe, especially since the car can shut down in traffic if the driver can’t find a safe place to pull over and take the test. The Sober Steering technology can take rolling retests without the driver having to do anything but keep his or her hands on the wheel. Sober Steering claims its technology can tell the difference between alcohol consumption and alcohol from hand sanitizer, mouthwash or other products, a common criticism of breathalyzers. And the cost of installing it is a sixth to a tenth of the cost of an IID, the article said.

As a Massachusetts drunk driving criminal defense lawyer, I agree that this could solve some of the drawbacks of IIDs, though not all of them. (Drivers could still illegally borrow someone else’s car, for example.) But I believe states and provinces should take a hard look at the technology before rushing to adopt it. For example, how finely tuned is the technology? Can it tell when a driver is wearing gloves? Can it consistently distinguish between a legal BAC of 0.07 and an illegal 0.08? Serious flaws, like the well-documented problems with breathalyzers, could allow defendants to fight their cases. Another concern has to do with the constitutional right of defendants to face their accusers. In cases of drunk driving, the test device is generally considered the “accuser,” which has led to court cases, successful in some states, demanding that the source code behind breathalyzer machines be publicly released. If Sober Steering’s technology will be used in the United States, the company should release its technology to allow defendants to build the best possible defenses.

The Law Offices of Stephen Neyman represents clients throughout eastern Massachusetts who are charged with operating under the influence and related crimes. If you’re facing charges, don’t hesitate to contact us for help. For a free phone consultation, please call (617) 263-6800 or send a message through the Web site.

Since 2006, Massachusetts law has required an ignition interlock device for anyone convicted of a second or subsequent drunk driving offense. This provision, which is part of Melanie’s Law, was intended to keep repeat drunk drivers off the road. Massachusetts drunk driving criminal defense attorneys like me always had doubts about the program’s effectiveness — but popular support for anti-DUI measures helped sweep it into law anyway. Now, the Boston Globe reported Jan. 8, the Massachusetts registrar of motor vehicles, Rachel Kaprielian, says two years of data show that the devices have successfully deterred drunk driving.

An IID is essentially a breathalyzer attached to the car’s ignition. If one is installed, it is impossible to turn on the car until the driver passes a breathalyzer test, with “failure” defined as a BAC of 0.02 or greater — not 0.08. The driver must then breathe into the device every 20 minutes (even if the car is in motion). Drivers convicted of OUI twice or more must install IIDs at their own expense whenever they are granted a hardship license, and for two years thereafter. No technology stops other people from taking the test for the driver, but Melanie’s Law also includes criminal penalties for people who do this, or who lend cars to drivers with an IID in their own vehicles.

According to the article, Kaprielian based her statement on new statistics released by the state. Those statistics say that more than 4,000 drivers altogether have been required to use the ignition interlock devices since Melanie’s Law took effect. Of these, it says, hundreds have completed the two-year period. And of those who completed the period, the state said only 30 drivers have been charged with a third OUI. This is a recidivism rate of less than 2%, the Globe reported.

I don’t doubt that the state’s numbers are accurate — but I think they’re being used in a misleading way. The article says more than 4,000 drivers have gotten the device, but only hundreds have completed the two-year program successfully. Even assuming “hundreds” is close to 1,000, that means three-fourths of the drivers did not complete the period. The typical reasons for not completing it are not good — essentially, breaking some condition of probation, including failing the test even once. Thus, the recidivism rate among all drivers with the device installed, whether or not they completed the two-year period, must be substantially higher than 2%. This is probably not the wild success claimed by the state.

Massachusetts OUI defense lawyers like me doubted the effectiveness, safety and legality of IIDs from the beginning. For one thing, IIDs are used under conditions that make them even less reliable than police breathalyzer tests. They can easily be contaminated by substances from inside and outside the car. Furthermore, there’s nothing but state law stopping drivers from having friends take the tests for them, or borrowing a different car. And finally, a study of IIDs in California (PDF) has found that IIDs not only did not bring down subsequent convictions, but actually increased the risk of a crash.